Formal Application for Access to Records

Form of Application

Applications for access to records are to be made in the form prescribed in the LAFOIP Regulations. A copy of the application form is included in the regulations.

However, the applicant does not have to use the exact form set out in the regulations if all the information required by that form is provided in writing. Therefore, if an applicant writes a letter containing all the elements set out in the form it should be treated as a formal application under LAFOIP.

The request made by the applicant must clearly specify the records being requested. A head can ask an applicant to provide further details or information to assist in locating the required records.

Any employee receiving a request should know who to pass the request on to if there is any question about how the request should be treated.

If it is appropriate, the head can transfer the request to another local authority. Such a transfer would be appropriate when:

  • the board of education (board) does not have the possession or control of the record but knows that it is in the possession or control of a third party (i.e., when a cumulative folder has been transferred to another school division); or
  • the board has possession or control of the record but it was supplied by the other local authority on the condition it not be disclosed.

Application Fee

The fees for applications under LAFOIP are set out in section 5 of the LAFOIP Regulations.

An application fee can be charged when a formal application is made. The board has the option to waive the fee which is currently set at $20.

Charges can also be made for making copies of records as set out in the LAFOIP Regulations.

The first hour of search time is free pursuant to section 5(3) of the LAFOIP Regulations. This hour does not include photocopying time or extra time spent because the local authority did not have adequate records of the information location. Additional charges of $15 per half-hour can also be made for extensive searches that will require more than 1 hour.

If extra charges will be made the board must estimate the charges and provide the applicant with the estimate. The applicant can then be required to pay half the estimated fee before the local authority begins the search. The applicant will not have to pay any more than the original estimate.

Information on how to search for and prepare appropriate responses to requests can be found at the website of the Office of the Saskatchewan Information and Privacy Commissioner in its document entitled Helpful Tips: Best Practices for Public Bodies/Trustees for the Processing of Access Requests.

Time to Respond to the Request

The board has 30 calendar days to respond in writing to an application.

If it is clear that the request is a complicated one and may require more time the head can advise the applicant and a further 30 days will be available to allow the local authority to comply with the request.

The specific criteria for extending the 30 day deadline are set out in section 12 of LAFOIP. The criteria are:

  • where there application is for a large number of records or where the request necessitates a search through a large number of records or where there is a large number of requests and completely the work would unreasonable interfere with the operations of the board of education;
  • where consultations are necessary to comply with the application and they cannot reasonably be complete within the original period; and
  • where a third party notice is required to be given pursuant to subsection 33(1) of LAFOIP.

Notice to Third Parties

Section 33 of LAFOIP provides that the board must give notice to a third party. If the board intends to give access to a record:

  • that may contain information that affects the inters of a third party as identified in section 18; or
  • contains personal information that may be disclosed pursuant to section 28(1)(n) and which allows the disclosure of information if the public interest outweighs the invasion of privacy of disclosure would clearly benefit the individual to whom the information relates .

Sections 33-36 of LAFOIP set out the processes to be followed by the board.

Denial of Access

The head can deny access to the record if the information falls within one of the exemptions listed in LAFOIP or is personal information of another individual. The onus is on the local authority to show that the exemption applies.

If a request for access to information is denied, the board must cite the specific section of LAFOIP that allows it to do so.

The response to the applicant must also contain notice that the applicant can ask the Office of the Saskatchewan Information and Privacy Commissioner to review the decision.

Copy of Record

The person granted access not only is entitled to look at the record but can also obtain a copy. The head can provide access by providing a copy of the document unless it is not reasonable to reproduce the record. It would be very rare when it is not reasonable to make a copy of the record. If cost is a significant factor then fees can be charged in some cases to facilitate the making of a copy.

Creating New Documents

LAFOIP does not require the board to create records. If a specific record requested does not exist, the board does not have to find the information and create a new record. The board does not have to respond to questions or inquiries by doing new research or producing new documents. If the board does not have the programming or software to be able to respond to the request it does not have to do so.

If, however, the information requested is stored in a database or other format that allows the board to create reports based on the data, it will be required to produce a report from the database as a response to an information request.

“Severing” Information from a Record

In some cases a record may contain information that can be disclosed as well as other information that cannot be disclosed. Section 8 of LAFOIP provides that the board must give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.

Care should be taken to assess each record in order to determine whether the information it contains can be disclosed without the need for further consent.

Severing of paper records is usually accomplished by blacking out the relevant information and then providing a photocopy of the blacked-out record. Copies should be carefully checked to ensure that the severed information is not readable.

In the case of electronic records the data that can be disclosed must be separated from the data which cannot be disclosed in whatever form best suits the medium. The onus is on the board to ensure that protected data is not included or disclosed.

Correction of Personal Information

An individual has the right under section 31 of LAFOIP to request correction of any personal information contained in a record held by the board. Correction includes errors and omission and only applies to fact material, not to opinion material.

If the correction is not made a notation must be added to the file that a correction was requested and refused.

The head has 30 days to notify the individual that the correction has been made or that the notation has been put on the file.

Appeals by an Applicant

If an applicant is dissatisfied with the response of the local authority to an access request section 38 of LAFOIP allows the applicant to request the Office of the Saskatchewan Information and Privacy Commissioner to review the decision of the board. The applicant has one year from the date of the decision to apply for a review.

The form that the applicant can use to request the review is found in the LAFOIP Regulations.

In making the review section 43 allows the Office of the Saskatchewan Information and Privacy Commissioner (Commissioner) to require records to be produced and to enter and inspect the premises of a local authority. The Commissioner can also require persons to give oral or written evidence.

Sections 44-47 set out the procedures available once the review is completed:

  • once the Commissioner has completed a review the Commissioner prepares a written report setting out the Commissioners recommendations and the reasons for the recommendations;
  • the board then has 30 days to decide whether or not to follow the recommendations and give notice to the commissioner and the applicant of the decision;
  • within 30 days of receiving notice from the local authority about whether or not the local authority will follow the recommendations, the applicant can apply to the court; and
  • the court will hear the issue from the beginning and has access to any information in the possession or under the control of the local authority and may make whatever order the court considers appropriate. The order can be enforce in the same way as any other court judgement.

Consequences of Unauthorized Disclosure of Personal Information

Section 56 of LAFOIP provides that anyone who knowingly discloses personal information in contravention of the legislation is guilty of a summary offence with a possible fine of up to $1,000 and/or three months in jail. While the maximum penalties would only apply in the most serious of cases it gives an indication of the importance privacy issues have in law.

Inadvertent disclosure of information or disclosure of information in the belief that it was allowed or required under LAFOIP would not constitute an offence.